Activity across the government has put advanced nuclear reactors center stage early this year.  With the signing of the Nuclear Energy Innovation and Modernization Act, hearings on Capitol Hill, and the release of a Department of Defense (DOD) Request for Information (RFI) for small mobile reactors, it is clear the federal government sees advanced reactors as a critical part of our country’s future energy portfolio, and that investment in regulatory reform along with public-private R&D is key to making this future a reality.

Nuclear Energy Innovation and Modernization Act: The Nuclear Energy Innovation and Modernization Act (NEIMA) was signed into law on January 14, bolstered by strong bipartisan support.  NEIMA is focused on regulatory reform strategies aimed at creating a more efficient licensing structure for advanced reactors.  One of the bill’s cosponsors touted the signing as “critical for the revitalization of our nation’s nuclear energy industry.”  For more information see our blog post Nuclear Reading to Kick Off the New Year.

Senate Appropriations Committee Hearing on New Nuclear Technologies: The Senate Appropriations Subcommittee on Energy and Water held a hearing on January 16 focused on the cost and safety advantages of advanced nuclear reactors.  Witnesses included the Principal Deputy Assistant Secretary of the Department of Energy (Edward McGinnis), the Director of Oak Ridge National Labs (Dr. Thomas Zacharia), and the Vice President of Nuclear Technologies and Materials at General Atomics (Dr. Christina Back). Although, the hearing touched on a number of issues, it focused on how new nuclear technology address financial and safety concerns associated with traditional nuclear reactors.

Dr. Zacharia touted his lab’s Transformational Challenge Reactor program as a change agent.  The program’s goal is to design, fabricate, and test the core of a nuclear micro-reactor within the next five years. The key to success, according to Dr. Zacharia, is additive manufacturing, which includes 3-D printing, digital manufacturing, and the use of digital prototypes.  Dr. Back from General Atomics also emphasized the use of advanced digital technology, but she focused on its applicability to reactor licensing and testing.  Dr. McGinnis summed up the goal of the hearing when he noted in his statement that “with a focused and sustained collaborative private-public partnership approach to support early-stage R&D…we can indeed revive, revitalize, and expand our Nation’s nuclear energy sector and restore our global nuclear energy leadership.”

DOD Request for Information on Small Modular Reactors: On January 18, the DOD Office of the Under Secretary of Defense for Research and Engineering put out a request for information on small mobile reactors.  According to the RFI, small mobile reactors would fill a need identified by the Defense Science Board in 2016 for powering forward operating bases—adding that small mobile reactors can “fundamentally change the logistics of forward operating bases” while serving other benefits such as in addressing humanitarian crises.  The RFI explains that public input could be used as the basis for future requests under the DOD’s prototype authority in 10 U.S.C. § 2371b, including to seek development of up to three prototype reactor designs.

The RFI provides discrete specifications for its ideal small mobile reactor—it can produce 1-10 megawatts for three years without refueling, can be installed and operating within 72 hours, can be transported by military platforms such as a C-17 aircraft, requires no manpower to operate, and incorporates passive safety features. Many of these characteristics align with the 2018 U.S. Army-commissioned Study on the Use of Mobile Nuclear Power Plants for Ground Operations, discussed in our last blog post.  Responses to the RFI are due February 8.

For more about any of the above topics, please contact the authors.

Happy New Year!  As we start off 2019, we want to motive the nuclear community by sharing a few legal updates and popular reports that have come out around the end of the last year.

  • Nuclear Energy Innovation and Modernization Act (S.512, NEIMA):  On December 21, Congress adopted NEIMA, legislation that addresses NRC licensing activities for current and next-generation nuclear reactors—and which the President is expected to sign in due course.  The text of the enrolled bill can be found here.  The legislation has a number of sections devoted to budget efficiency and reigning in NRC licensing fees “to the maximum extent practicable,” but also contains a number of provisions pushing the agency to develop a new regulatory approach for advanced reactors.  These include:
    • Prompting the NRC to “Develop and implement” a Staged Licensing Program (along with conceptual design assessments and licensing project plans).  The legislation also pushes the NRC to hasten research and test reactor licensing, further adopt risk-informed regulatory processes, and train staff and hire experts to support licensing activities.  The legislation requires the NRC to provide reports to Congress to monitor agency progress.  Many of these steps are things the NRC already is attempting—for example, the NRC’s advanced reactor licensing guidance, such as its “Regulatory Review Roadmap For Non-Light Water Reactors,” already speak to staged licensing, conceptual design reviews, and project plans.  However, NEIMA authorizes $14,420,000 for this effort per year, which if added beyond current allocations could help hasten all of these activities.
    • Requiring the NRC to Report on Creating a New Reactor Licensing Framework.  As opposed to the above activities, which would occur largely under the current regulatory framework, the legislation would also ask the NRC to draft a report to Congress on developing a new, technology-inclusive regulatory framework for advanced reactor licensing, to be completed by 2027.  This builds on suggestions already put forward by the NRC staff for a “10 CFR Part 53” process for licensing advanced reactors, which is also highlighted in an article recently co-authored by one of the writers of this blog.
    • Amending the Atomic Energy Act to Allow Research/Test Reactors to Sell Energy.  This interesting provision would amend 42 USC 2134(c), one of the core elements of the Atomic Energy Act, to permit licensing of a broader variety of research and test reactors under a “minimum amount of regulation”—including research and test reactors that also generate revenue from other sources, such as through sales of electricity (although such sales would be capped at a percent of annual facility ownership & operating costs).  A goal of this provision appears to be to enhance the economics for building research and test reactors, long considered a key roadblock to advanced reactor licensing.

There is much more to this legislation than described here, and we hope it will have a significant effect on advanced reactor licensing in the United States.

  • DOE to Use 2 of NuScale’s First 12 Modules:  The same time as NEIMA moved through Congress, DOE announced a memorandum of understanding (MOU) to draw on 2 of the planned 12 modules of NuScale’s first reactor project, for DOE research and facility use.  This MOU concerns NuScale’s first planned reactor project, to be procured by Utah Associated Municipal Power Systems (UAMPS) and sited at Idaho National Laboratories (INL).  According to the DOE press release, one module would “be designated strictly for research activities (referred to as the Joint Use Modular Plant or JUMP program),” focusing on development of integrated energy systems. The second module would then be used to provide power to INL under a Power Purchase Agreement (PPA).
  • National Academies Fusion Report:  In Mid-December, the  National Academies of Sciences, Engineering, and Medicine (NAS) issued a detailed new report on nuclear fusion, entitled the Final Report of the Committee on a Strategic Plan for U.S. Burning Plasma Research.  It highlights the significant progress made in fusion research, and provides guidance on a national strategy to achieve practical fusion energy.  Critically, along with supporting the multi-national International Thermonuclear Experimental Reactor (ITER) project in France, the report recommends a separate national effort “to build a compact pilot plant that produces electricity from fusion at the lowest possible capital cost.”  The report is technically focused, but also briefly discusses regulatory matters, pointing to past DOE safety guidance developed for the ITER project as a starting point.  It also posits that “[s]iting and licensing strategies for such facilities should be developed well in advance so as not to delay the progress toward the compact fusion pilot plant.”  Questions as to the final regulatory framework and regulator for commercial fusion facilities are still very much under consideration, although the report considers a transition to the NRC as the regulator for commercial fusion power facilities.

It also seems worth highlighting two other reports that came out earlier in 2018, that have been trending lately in the nuclear community.

  • The first is a U.S. Army-commissioned Study on the Use of Mobile Nuclear Power Plants for Ground Operations.  It is a thorough report that among other things, details past use of mobile nuclear reactors by the U.S. Army, including for providing power and fresh water at the Panama Canal Zone.  It also recommends the Army pursue mobile nuclear power plant acquisition through the National Defense Authorization Act, and suggests discrete performance requirements for any such plant.
  • The second is an MIT report, The Future of Nuclear Energy in a Carbon-Constrained World.  It covers a number of topics, and has a whole chapter dedicated to nuclear licensing issues.  Stepping back, a unique contribution of the report appears to be the way it leads with a very detailed discussion of nuclear power plant construction costs (including the huge costs incurred from site-specific construction activities), and uses this analysis to then drive many of its technical and regulatory recommendations: including on the use of modularized construction methods, regulatory standardization and harmonization, and government support for rapid testing and prototyping of new reactor designs—all with a general aim to improve the economics for advanced reactors.  One of the report’s principle authors, Jacopo Buongiorno, discusses this further in his Titans of Nuclear podcast.

For more about any of the above topics, please contact the authors.

Blog author Sachin Desai, along with a member of the NRC staff, both acting in their individual capacity, recently published an article in the American Bar Association’s nuclear law publication entitled “Preparing for Advanced Reactors: Exploring Regulatory and Licensing Reform.”  The article reviews advanced reactor licensing reform efforts, discusses an NRC staff recommendation for a new, risk-informed rule for licensing new reactors (colloquially called “10 CFR Part 53”), and also explores a novel concept to adapt the NRC’s adjudicatory licensing process to reach initial licensing decisions on complex regulatory questions.

The first part of the article starts with useful background as to the NRC’s regulatory reform efforts to prepare for advanced reactors, including among other things the NRC’s Vision and Strategy statement on advanced reactor licensing, and Guidance for Developing Principal Design Criteria for Non-Light Water Reactors.  It then discusses a significant NRC staff paper to the Commission, entitled Achieving Modern Risk-Informed Regulation, which proposes creating an “optional, technology-inclusive, risk-informed, performance-based rule for reviewing the design and operation of advanced reactors.”   According to the article, the licensing path “could potentially become a new part of the NRC regulatory framework—a ‘10 CFR Part 53.’”  This is covered more in a prior blog entry here.

The second part of the article starts by describing the current NRC adjudicatory framework, which is based on a requirement in the Atomic Energy Act that “provides applicants, the public, and the NRC’s own staff an opportunity to make their safety cases before an independent adjudicatory body,” particularly the Atomic Safety & Licensing Board Panel.  Currently this hearing process is most often used by citizens’ groups to challenge license applications, but the article posits that “the NRC’s adjudicatory process and the diverse pool of expert administrative judges” within these licensing boards (consisting of both legal and technical judges working together), may be “well suited to advanced reactor licensing.”

The article asks then whether there are circumstances in which specific, reasonable disagreements by the NRC staff and an advanced reactor applicant on a regulatory interpretation or licensing question can be brought before this panel (or a modification of it) to resolve on a fast timeline.  The licensing board can then issue a “tailored, precedential, decision on that particular disagreement,” with options for review by the NRC Commission.  Implementation of this approach will raise policy questions and likely require modification of the NRC’s regulations around adjudicatory proceedings, but it is nonetheless one option to explore further as licensing of advanced reactors approaches on the horizon.

For more about this blog post, please contact Amy Roma and Sachin Desai.

Earlier this month, a leading group of Canadian power companies and government entities (although not the nuclear regulator) issued a “Canadian SMR Roadmap,” an 89 page plan for Canada to become a leader in small modular and advanced reactor development (there is also a smaller executive summary).  Although the roadmap takes a look at a number of technical, commercial, and legal issues with SMR deployment in Canada, this entry focuses on some of the regulatory reform proposals outlined in the roadmap—to better understand what Canadian stakeholders think are the biggest hurdles to licensing advanced reactors above the 49th Parallel.  We discuss four regulatory reforms suggested in the roadmap, many of which compare with efforts going on here in the United States.

  • Environmental Reviews:  A key issue in the Canadian SMR Roadmap was reform of environmental impact reviews.  The roadmap strongly advocates for Canada to pass a revised Impact Assessment Act, legislation before the Canadian Parliament to modernize the national environmental review process.  In addition, the roadmap authors appear to advocate for additional tweaks to the environmental review process—including potentially exempting “applications to construct, operate, and decommission SMRs equal to or below an electric capacity of 300 MWe” from environmental reviews, on the grounds that such reactors have low environmental risk.  While there are numerous efforts ongoing in the US to reform US federal environmental review policies, exempting SMRs from US National Environmental Policy Act reviews has not been widely advocated for (although it is something the authors have explored).
  • Security:  The Canadian SMR Roadmap pays special attention to security at SMRs, noting that “the current regulations would require SMRs to incorporate security infrastructure comparable to today’s operating full scale nuclear power plants.”   The roadmap advocates for reform in this area to remove prescriptive requirements in favor of risk-based regulation.  Interestingly, the US Nuclear Regulatory Commission (NRC) may be ahead of the curve on this issue, with the NRC staff earlier this year sending to the NRC Commission an options paper on tailoring physical security requirements for SMRs and advanced reactors.  On November 19, the NRC Commission  approved the NRC staff moving forward with a limited-scope rulemaking to generally reduce excess physical security requirements for small modular and advanced reactors, given their inherent safety features.
  • Risk-Informed Rulemaking:  Apart from its specific focus on the security regulations, the Canadian SMR Roadmap advocates for the Canadian nuclear regulator, the Canadian Nuclear Safety Commission (CNSC), to take a more risk-informed view to regulation, particularly on issues “such as staff training and emergency response.”  In regards to emergency response, the roadmap argues that the CNSC should adopt regulations “based on risk-informed criteria, not an arbitrary low [10MWt] limit on reactor thermal power.”   This seems to align with the NRC’s efforts to adopt risk-informed regulation for emergency planning for next-generation reactors, with the US regulator already moving forward with a rulemaking in this area.
  • Nuclear Energy Advisory Council:  The roadmap advocates for the creation of a Nuclear Energy Advisory Council (NEAC) to give direction to Canadian SMR nuclear policy.  The NEAC would be “composed of senior executives and ministers” and meet annually to focus on implementation of the SMR roadmap and related action plans.  This strikes a chord with a policy proposal previously put forward by the blog authors in the paper Back from the Brink: A Threatened Nuclear Energy Industry Compromises National Security.  This paper advocates for the US to adopt its own Nuclear Energy Advisory Council, also comprised of business leaders and government officers—although with more of a strategic advisory versus implementation role.  Compared to the Canadian version, the US NEAC would “advise the President and National Security Council on the commercial nuclear industry, mirrored after the National Infrastructure Council.”

The Canadian SMR Roadmap is a promising document that helps highlight Canada’s growing potential role in SMR and advanced reactor development.

And on the nuclear strategy front in the US, the Senate on Thursday November 29 is holding a hearing that will cover in part the Nuclear Energy Leadership Act (S 3422),, a significant piece of legislation that can help close many gaps in advanced reactor development (including testing and fuel cycle development).  We wrote about this important piece of legislation in a past blog entry available here.  The Nuclear Energy Leadership Act is designed to help the United States return to the lead in nuclear energy technology leadership.  The bill sponsors explain that the US has yielded this position to Russia and China–weakening our energy security, economic competitiveness, and national security.  The bill covers a range of activities, including funding research and development, and accelerating the deployment of advanced nuclear energy technologies.

Notably, both the Canadian and US activities show that advanced reactor developments warrant strategic government support at a national level.

For more about the issues discussed in this entry, please contact the authors.

The U.S. Nuclear Regulatory Commission (NRC) recently released a staff paper-SECY-18-0096-seeking Commission approval of a new proposed methodology for establishing “functional containment” performance criteria for non-light water reactors (non-LWRs).  This methodology would step away from deterministic containment design parameters and embrace a concept of “‘functional containment’ as a barrier, or a set of barriers taken together, that effectively limits the physical transport of radioactive material to the environment.”  If approved, the proposed methodology would be a critical step in developing a framework for licensing non-LWR designs.

Many current NRC regulations and guidance documents are prescriptive in nature and focus on problems unique to LWR technology—that is, the regulations tell you squarely what you need to do, providing limited opportunity to meet the end objective of the regulation in a different way.  For example, NRC guidance in NUREG-800 Chapter 3 provides detailed requirements for the strength and thickness of barrier concrete.  As the NRC has started to grapple with non-LWR designs, it has shifted its focus to more risk-based and performance-based methodologies—that is, the NRC would define the objective, and an applicant would have more flexibility in showing the NRC how its design meets the objective.  Under the performance-based methodology proposed in the SECY paper, the requirements imposed on physical barriers would be determined based on the risk of migration of radioactive materials and the other safety measures being used for containment.

The new methodology proposed by the NRC staff, therefore, does not prescribe the traditional structures, systems, and components (SSCs) required for functional containment, but rather focuses on performance requirements.  This methodology will give non-LWR designers more flexibility and provide a more integrated approach for developing a regulatory framework for non-LWRs.

A key component of the methodology is the “identification and categorization of licensing-basis events.”  The NRC staff recommends using the set of event categories initially developed under the Next Generation Nuclear Plant Project and used in the Licensing Modernization Project as the baseline for developing performance criteria.  Based on these event categories, the performance criteria will be developed to meet fundamental safety requirements.  Once the performance criteria have been determined, it appears the developers of non-LWRs would consider the potential consequences associated with the identified events and assess the cost and benefits of potential SSC options to prevent or mitigate the migration of radioactive material.  The NRC staff is calling this approach the “Barrier Assessment” or “Bow Tie” method, as depicted in the figure below:

If approved, the prosed methodology for functional containment performance criteria will be incorporated into the draft guidance the NRC staff is currently compiling for non-LWR licensing.

If you would like more information please contact the authors.

Recently, the Hill has been taking a flurry of legislative actions that impact the advanced reactor community across all spectra.  We provide a summary of some of the major bills going through Congress below, including a couple which have recently become law or may become so soon.

Nuclear Energy Innovation Capabilities Act (NEICA) (S. 97). This bill, which has a long history before Congress, finally passed both the House and Senate on September 24, and was signed by the President into law Friday September 28.  The text of the enrolled bill (the bill that has passed both chambers of Congress in identical form and sent to be signed) can be found here.

NEICA tackles a number of issues, but as a theme largely directs the US Department of Energy (DOE) to move forward on a number of actions long advocated for by the advanced reactor community—including opening up the labs more for private sector use, advancing a test reactor plan, and increasing collaboration with the US Nuclear Regulatory Commission (NRC).  As provided in the bill summary, DOE is instructed to:

  • Determine the need for a versatile reactor-based fast neutron source, which shall operate as a national user facility, and put forward a plan to construct and operate such a facility by the end of 2025.
  • Enhance its high-performance computation modeling and simulation techniques for advanced reactors.
  • Lead a program for testing of advanced reactor concepts (including physical testing), with a focus on removing licensing and technical uncertainty.  As part of this, the DOE is to work closely with the NRC to share technical expertise developed from this testing program and grant NRC staff access to the program and related sites to learn from any testing.  The goal of this is to help ensure the NRC has sufficient resources to license any reactor designs being tested.
  • Submit a budget proposal to Congress to perform the above activities.
  • Submit a report to Congress on fusion technologies under development (fusion is included within the bill’s broad definition of “advanced reactor”), with a focus on those technologies that can provide net energy production within 15 years after the start of construction of test or prototype facilities.
  • Develop an “Advanced Nuclear Energy Cost-Share Grant Program” to assist in paying NRC licensing fees for new reactor designs, including early stage activities such as development of a licensing plan.

NEICA was signed Friday along with H.R. 589, the DOE Research and Innovation Act, which also aims to shape DOE’s research agenda and use of the national laboratories to improve research collaboration and technology commercialization.

Energy-Related Appropriations Legislation (H.R. 5895). The President signed a broad appropriations bill on September 21, which covered funding for DOE.  The text of the enrolled bill can be found here, but summaries of the bill’s core DOE funding provisions can be found in a conference report, and a summary provided by the American Institute of Physics (AIP) here.  As represented in the AIP summary, the bill is largely a victory for DOE, with funding increases seemingly across the board, including a 10% increase in funding to the Office of Nuclear Energy and $65 million set aside for the versatile fast-neutron test reactor described above.

Nuclear Utilization of Keynote Energy Act (H.R. 1320). This bill passed the House on September 25.  The text of the bill can be found here.  It is targeted at NRC reform, and seeks among other things to:

  • Codify that up to $10.3M of the NRC’s work for advanced reactor readiness is to be removed from fee recovery (it also puts a cap on many other licensees’ annual fees).
  • Study the effect of removing the Atomic Energy Act’s restriction on foreign ownership, control, or domination of nuclear licenses (primarily affecting reactor licenses).
  • Study the elimination of the mandatory hearing requirement for uncontested reactor license applications.
  • Allow for the adoption of more informal hearing requirements for licensing proceedings.
  • Instruct the NRC as to more efficiently processing license applications, with a 42 month timeline for issuing safety and environmental reports after docketing of the application.
  • Establish community advisory boards in areas where plants are undergoing decommissioning.

Nuclear Energy Leadership Act (S. 3422). This bill was introduced into the Senate earlier this month, with 9  The text of the bill can be found here, and we provide a thorough summary in our past blog entry.  This bill would build on the Nuclear Energy Innovation Capabilities Act to, among other things:

  • Direct the U.S. government to enter into long-term power purchase agreements with nuclear reactors.
  • Promote the development of advanced reactors and fuel by strategically aligning U.S. government and industry interests, which is intended to enable U.S. developers to compete with their state-sponsored competitors from Russia and China.
  • Further push DOE to construct a fast neutron-capable research facility, which is crucial to test important new nuclear technologies and demonstrate their safe and reliable operation. Currently the only two facilities in the world like this are in Russia and China.
  • Develop a source of high-assay low-enriched uranium, which is the intended fuel for many advanced reactor designs, from U.S. government stockpiles. Again, both China and Russia have these capabilities domestically, but the U.S. does not.

This bill recognizes the national security implications that come with the long-term neglect of our nuclear industry, which is outlined in our recent paper published by Center for Strategic and International Studies, entitled  “Back from the Brink: A Threatened Nuclear Energy Industry Compromises National Security.”

* * *

This review only highlights some of the nuclear-related bills currently before Congress—others of which also touch on reform to, e.g., our national nuclear export controls regime.  For further information on the bills described above or on other nuclear legislation, please contact the authors.

A bipartisan group of nine U.S. senators has introduced the Nuclear Energy Leadership Act (NELA) (S 3422), a bill designed to help the United States return to its lead in nuclear energy technology.  The bill sponsors explain that the U.S. has yielded this position to Russia and China–weakening our energy security, economic competitiveness, and national security.  The blog authors, in collaboration with the Center for Strategic and International Studies, have recently published on just this issue in “Back from the Brink: A Threatened Nuclear Energy Industry Compromises National Security” (Jul. 2018).

The bill covers a range of activities to fund research, development and accelerated deployment of advanced nuclear energy technologies.  The one-page summary of the bill issued by the Senate Committee on Energy and Natural Resources explains–

To reestablish global leadership, the U.S. must have a healthy nuclear industry capable of designing and deploying the most advanced reactor concepts in the world at a competitive price. As we look for clean, safe, reliable, flexible, and diverse power sources to meet the nation’s energy needs, advanced reactors will play a critical role in that mix.

Notably, the bill would:

  • Direct the U.S. government to enter into long-term power purchase agreements (PPAs) with nuclear reactors.
  • Promote the development of advanced reactors and fuel by strategically aligning U.S. government and industry interests, which is intended to enable U.S. developers to compete with their state-sponsored competitors from Russia and China.
  • Construct a fast neutron-capable research facility, which is crucial to test important new nuclear technologies and demonstrate their safe and reliable operation. Currently the only two facilities in the world like this are in Russia and China.
  • Develop a source of high-assay low-enriched uranium, which is the intended fuel for many advanced reactor designs, from U.S. government stockpiles. Again, both China and Russia have these capabilities domestically, but the U.S. does not.

Section by Section Breakdown

The Senate Committee on Energy and Natural Resources also released a section-by-section analysis of NEAL, which we summarize below, paying particular attention to the PPA provision, which could be a near-term game changer for the advanced reactor industry.

  • S. Government Power Purchase Agreements (Sections 2 and 3). Notably, the bill would create a pilot program for the U.S. government to enter into long-term PPAs with commercial nuclear reactors.  Under the bill—
    • The Secretary of Energy must consult and coordinate with other Federal departments and agencies that could benefit from the program, including the Secretary of Defense and the Secretary of Homeland Security.
    • At least one PPA has to be in place with a commercial nuclear reactor by the end of 2023.
    • The maximum length of the PPA is extended from 10 to 40 years, and the PPAs can be scored annually. Currently, nuclear energy is at a disadvantage when competing for federal PPA, due to a law that pre-dates commercial nuclear power and limits PPAs to 10 years. Initial capital costs for nuclear reactors are paid for over a period beyond ten years, which means 10-year PPAs do not work for nuclear projects, so this change would be an important development for the industry.
    • In carrying out the pilot program, the Secretary of Energy must give special consideration to PPAs for “first-of-a-kind or early deployment nuclear technologies that can provide reliable and resilient power to high-value assets for national security purposes or other purposes…in the national interest, especially in remote off-grid scenarios or grid-connected scenarios that can provide capabilities commonly known as ‘islanding power capabilities’ during an emergency scenario.”

The other provisions of the bill, as described in the section-by-section analysis are summarized below.

  • Advanced Nuclear Reactor Research and Development Goals (Section 4). In order for the American nuclear industry to compete with state-owned or state-sponsored developers in rival nations – especially China and Russia – significant collaboration between the federal government, National Labs, and private industry is needed to accelerate innovation. This provision directs the Department of Energy (DOE) to establish specific goals to align these sectors and send a strong and coherent signal that the U.S. is re-establishing itself as a global leader in clean advanced nuclear technology.
  • Nuclear Energy Strategic Plan (Section 5). There has not been a cohesive long-term strategy for the direction of U.S. nuclear science and engineering research and development policy across administrations.  This section requires DOE’s Office of Nuclear Energy to develop a 10-year strategic plan that supports advanced nuclear R&D goals that will foster breakthrough innovation to help advanced nuclear reactors reach the market.
  • Versatile, Reactor-Based Fast Neutron Source/Facilities Required for Advanced Reactor R&D (Section 6). For the U.S. to be a global leader in advancing nuclear technology, we need the ability to test reactor fuels and materials. Currently, the only machines capable of producing a fast neutron spectrum are located in Russia and China. This measure directs DOE to construct a fast neutron-capable research facility, which is necessary to test important reactor components and demonstrate their safe and reliable operation – crucial for licensing advanced reactor concepts.
  • Advanced Nuclear Fuel Security Program/High-Assay Low-Enriched Uranium Availability (Section 7). A healthy domestic uranium mining, enrichment, and fuel fabrication capability that meets industry needs is another prerequisite for reestablishing U.S. nuclear leadership. Many advanced reactors will rely on high-assay low-enriched uranium (HALEU), but no domestic capability exists to produce it. This section establishes a program to provide a minimum amount of HALEU to U.S. advanced reactor developers from DOE stockpiles, until a long-term domestic supply is developed.
  • University Nuclear Leadership Program/Workforce Development (Section 8). The nuclear energy industry, the Nuclear Regulatory Commission, and the National Nuclear Security Administration all require a world-class, highly-skilled workforce to develop, regulate, and safeguard the next generation of advanced reactors. This section creates a university nuclear leadership program to meet these workforce needs.

The bill was introduced by  Sens. Lisa Murkowski (R-Alaska), Cory Booker (D-N.J.), James Risch (R-Idaho), Shelley Moore Capito (R-W.Va.), Mike Crapo (R-Idaho), Richard Durbin (D-Ill.), Joe Manchin (D-W.Va.), Sheldon Whitehouse (D-R.I.) and Chris Coons (D-Del.).

For questions on the bill or the links between national security and the commercial nuclear power industry, please contact one of the authors listed below.

This month, the NRC published an early draft regulatory guide on the content of license applications for non-LWRs.  The document is designed to help license applicants apply the NRC’s movement towards a risk-informed/performance-based regulatory approach towards the drafting of an actual license application.

The document is in part the result of the Southern Company-led Licensing Modernization Project, which has resulted in the issuance of a number of informal reports discussing licensing reform for non-LWR reactors.  This draft regulatory guide is designed to more formally capture the results of those reports and follow-on discussions.   It addresses the designation of licensing basis events; safety classification and performance criteria for structures, systems, and components; and evaluation of defense in depth adequacy.  importantly, it largely adopts detailed draft industry guidance set forth in March of this year, although with certain clarifications.  One area of particular NRC focus concerns probabilistic risk analyses (“PRA”), where the agency appears to show a little hesitancy with the broad use of PRA proposed in the industry guidance.

The draft guidance is being issued to support future discussions, in particular an Advisory Committee on Reactor Safeguards meeting tentatively scheduled for October 30, 2018.  For more about the Licensing Modernization project, or recent NRC and industry guidance on contents for non-LWR license applications, please contact the authors.

The NRC staff recently publicly released a major new paper embracing regulatory reform to advance risk-informed regulation for advanced reactors.  Included in this paper is a concept of a “10 CFR Part 53”—a potentially entirely new process for licensing advanced reactors.

SECY-18-0060, “Achieving Modern Risk-Informed Regulation,” proposes “several significant and specific revisions” to the NRC regulatory framework.  The staff introduced these proposals by first discussing the results from an outreach program, which found a “need for systematic and expanded use of risk and safety insights in decisionmaking.”  The review team also found recommendations for a more open and efficient decisionmaking process for licensing new technologies.  Of significance, the NRC staff explained in this paper that some of its proposals, reflecting feedback from its outreach, will require cultural change at the NRC—in fact, that “[a] shift in NRC culture will be key to the success of the transformation initiative.”

The paper then builds from this, to discuss ways to “transform” the NRC’s licensing process.  The first part of this discussion focuses on changes that can be made through guidance, in particular to adopt “approaches that use qualitative and quantitative safety and risk insights to scale the level of review needed to make a finding of reasonable assurance.”  As part of this initial reform, the NRC staff discusses use of “(1) expert panels to guide reviews of incoming submittals for new technologies and major licensing actions; (2) internal small groups of NRC staff and management to guide the licensing process (called ‘guiding coalitions’); and (3) ‘tiger teams’ consisting of small groups of NRC staff who are empowered to identify alternative solutions to resolve licensing challenges, without being unnecessarily constrained by current processes or past practice.”

However, then the NRC staff paper moves on to discuss much more significant regulatory reform—to essentially create a new licensing path for advanced reactors that focuses on “meeting high-level risk-informed, performance-based criteria.”  Enclosure 5 to the paper, which lays out “Additional Detail on Areas of Transformation,” delves into more detail, and also advocates for a “10 CFR Part 53” licensing process: “[A] new optional framework [that] would provide greater applicability for non-LWR applicants and minimize the need for exemptions.”  Although recognizing the challenges with a new rulemaking, the paper advocates for the approach and notes that “[t]he timing for a new rule is ideal right now, in that it will signal to the rising non-LWR community and other stakeholders that the NRC is committed to reviewing and licensing new reactor technology in a timely manner and in a way that relates directly to tomorrow’s technology.”

SECY-18-0060 represents the product of a great deal of work and research by the NRC staff, and promises significant, if not fundamental, reforms to the NRC’s licensing process at this critical juncture for the “New Nuclear” economy.  Expect to see significantly more analysis and attention to this effort as it moves forward.  For more information on the NRC’s regulatory reform initiative, please contact the authors.

A recent headline in the energy trade press would not likely have caught the attention of the advanced nuclear industry: “Trump’s DOE punishes Obama-era solar success story.” A casual reader might quickly dismiss the story as indicative of a Trump Administration bias against renewable energy. The details reported in the story, however, convey a far different message—one that is great significance to the many advanced nuclear technology companies that are responding to DOE’s funding opportunity announcement for advanced nuclear development.

The E&E News article reports that a company by the name of 1366 Technologies accepted millions of dollars in DOE funding to develop a process to reduce the cost of producing silicon wafers. In return, it made certain commitments routinely required of recipients of DOE technology funding: to engage in substantial U.S. manufacture of the technology, to disclose to DOE patents produced with DOE financial assistance, to give DOE a royalty-free license for government use, and to give DOE so-called “march-in rights” to license the technology to others if the funding recipient fails to use the technology itself.

According to the published story, DOE has sought to enforce the commitment 1366 Technologies made to build its solar wafer manufacturing plant incorporating the DOE-funded technology in the U.S., specifically in upstate New York. Delays in obtaining a wholly separate DOE loan guarantee are said to account for a decision by 1366 to instead build its first plant in Asia. E&E News reports that DOE has responded with a submission to the United States Trade Representative suggesting that the failure to comply with the U.S. manufacture commitment should be weighed in considering a request by 1366 for exemption from the 30 percent tariff that generally applies to foreign manufacturers of solar panels. DOE is also reportedly evaluating its options with respect to 1366’s failure to disclose patents it filed while it was accepting DOE financial assistance. Under DOE intellectual property (IP) rules, the failure to make a required disclosure could result in a loss of rights in those patents.

This is not fairly characterized as an instance of the Trump Administration attacking the solar industry. Rather, it represents a continuation of the practice that the Obama Administration and others before it pursued (albeit with varying degrees of ardor) of ensuring that the American taxpayer gets the benefit of its bargain for assisting in the advancement of energy technologies. That funding is designed to advance U.S. competitiveness in energy technology and energy manufacturing. In DOE’s view, allowing the IP that results from the taxpayer investment to be shipped abroad for commercialization can defeat the purpose of the taxpayers’ investment. DOE’s views are supported by statute (in particular, this is the intent behind the Bayh Dole Act, 35 U.S.C. §§ 200 – 212).

This is why the advanced nuclear technology industry should be paying close attention to the 1366 case. The FOA for advanced nuclear technology puts great emphasis on the desire to rebuild U.S. nuclear manufacturing capability. DOE has recently announced its first round of awards under the FOA. Additional applicants have submitted in the second round, and many others are preparing to submit one or more applications over the five years that DOE has said the FOA will remain open. The FOA represents a great opportunity to make important advances in nuclear technology prowess and to restore the U.S. nuclear supply chain to its past pre-eminence. That is what DOE expressly seeks to do. Therefore, it is important to understand and to put in place a program to assure compliance with the “strings” that are attached to the DOE money.

More than 10 pages of the lengthy FOA are devoted to the applicable IP rules. The eyes of an enthusiastic applicant might easily glaze over when they get to those 10 pages, but that would be a mistake. The rules reflect the implementation of statutory requirements, and they are unique to government-funded IP. They may be unfamiliar to those schooled in standard IP rules and practices associated with filing for patent rights. The ultimate commercial success of developing a great new technology may depend on understanding the obligations, managing the risks, engaging with DOE candidly when unanticipated challenges arise, and of course internalizing what we all already know: there really is no free money.

Applicants for DOE funding worry a lot about the government royalty-free license and the march-in rights (which the government has never exercised). However, the story about 1366 Technologies shows that those who accept federal funding to develop their technologies should have far greater concern about meeting the commitments they make to manufacture the technology in the U.S. and to disclose the patents they develop with government funds. In our experience, DOE is open to discussion and negotiation, within the constraints of its statutory obligations. However, DOE has demonstrated its willingness to employ at least some of the powerful enforcement tools it has at its disposal to enforce those obligations if it concludes the circumstances warrant such action.

In short, it is important to understand and take seriously the substantial U.S. manufacture and patent disclosure obligations that come with a financial assistance, because DOE does.

For more information, please contact Mary Anne Sullivan.